Case Note & Summary
The original defendants in Regular Civil Suit No. 22 of 2004 challenged the order dated 1st January 2014 passed by the learned Adhoc District Judge-1, Latur in Regular Civil Appeal No. 32 of 2010, whereby the respondent (original plaintiff) was permitted to withdraw the suit with liberty to institute a fresh suit in respect of the same subject matter. The petitioners (original defendants) contended that the permission to withdraw with liberty was erroneous and that the suit should have been dismissed. The High Court examined the provisions of Order XXIII Rule 1 of the Code of Civil Procedure, 1908, and found that the appellate court had correctly exercised its discretion. The court noted that the plaintiff had sought withdrawal due to a technical defect, and the grant of liberty to file a fresh suit was not an abuse of the process of court. The High Court upheld the order, dismissing the civil revision application.
Headnote
A) Civil Procedure - Withdrawal of Suit - Order XXIII Rule 1 CPC - Permission to withdraw with liberty to file fresh suit - The plaintiff sought withdrawal of the suit on the ground of a technical defect. The appellate court allowed withdrawal with liberty. The High Court held that the discretion exercised by the appellate court was proper and did not suffer from any illegality or material irregularity. (Paras 1-10)
Issue of Consideration
Whether the lower appellate court was justified in permitting the plaintiff to withdraw the suit with liberty to file a fresh suit under Order XXIII Rule 1 of the Code of Civil Procedure, 1908.
Final Decision
The High Court dismissed the Civil Revision Application, upholding the order of the lower appellate court which permitted the plaintiff to withdraw the suit with liberty to file a fresh suit.
Law Points
- Withdrawal of suit with liberty to file fresh suit
- Order XXIII Rule 1 CPC
- Civil Procedure Code
- 1908
- Permission to withdraw
- Technical defect
- Abuse of process of court
Case Details
2016 LawText (BOM) (09) 22
Civil Revision Application No. 185 of 2014
Mr. Prashant K. Deshmukh for the Petitioners, Mr. G.L. Deshpande for the Respondent
Sow. Saroj w/o Ramesh Jadhav and Ramesh s/o Kishanrao Jadhav
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Nature of Litigation
Civil Revision Application challenging an order permitting withdrawal of suit with liberty to file fresh suit.
Remedy Sought
The petitioners (original defendants) sought to set aside the order dated 1st January 2014 passed by the Adhoc District Judge-1, Latur in Regular Civil Appeal No. 32 of 2010, which allowed the respondent (original plaintiff) to withdraw the suit with liberty to file a fresh suit.
Filing Reason
The petitioners challenged the legality and correctness of the order permitting withdrawal with liberty, contending that it was erroneous.
Previous Decisions
The trial court had dismissed the suit? (Not explicitly stated, but the appeal was against an order in Regular Civil Appeal No. 32 of 2010, which arose from Regular Civil Suit No. 22 of 2004. The appellate court allowed withdrawal with liberty.)
Issues
Whether the lower appellate court was justified in permitting the plaintiff to withdraw the suit with liberty to file a fresh suit under Order XXIII Rule 1 CPC.
Submissions/Arguments
The petitioners argued that the permission to withdraw with liberty was erroneous and that the suit should have been dismissed.
The respondent supported the order, contending that the withdrawal was sought due to a technical defect and the appellate court correctly exercised its discretion.
Ratio Decidendi
The discretion exercised by the appellate court under Order XXIII Rule 1 CPC to permit withdrawal of a suit with liberty to file a fresh suit, when sought on the ground of a technical defect, is proper and does not constitute an abuse of the process of court. The High Court will not interfere with such discretionary order in revision unless it suffers from illegality or material irregularity.
Judgment Excerpts
The original defendants in Regular Civil Suit No. 22 of 2004 have preferred this application, challenging the legality and correctness of the order dated 1st January, 2014, passed in Regular Civil Appeal No. 32 of 2010 by the learned Adhoc District Judge1, Latur whereby the respondent (original plaintiff) has been permitted to withdraw the said suit with liberty to institute a fresh suit in respect of the same subject matter.
Procedural History
Regular Civil Suit No. 22 of 2004 was filed by the respondent (plaintiff) against the petitioners (defendants). The suit was dismissed? (Not clear). The plaintiff filed Regular Civil Appeal No. 32 of 2010. On 1st January 2014, the Adhoc District Judge-1, Latur allowed the plaintiff to withdraw the suit with liberty to file a fresh suit. The defendants challenged this order in Civil Revision Application No. 185 of 2014 before the Bombay High Court, which was dismissed on 8th September 2016.
Acts & Sections
- Code of Civil Procedure, 1908: Order XXIII Rule 1
